Citation Nr: 0424964
Decision Date: 09/10/04 Archive Date: 09/16/04
DOCKET NO. 03-09 574 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Entitlement to a disability rating in excess of 10 percent
for chondromalacia of the left knee.
ATTORNEY FOR THE BOARD
Michael T. Osborne, Associate Counsel
INTRODUCTION
The veteran had active service from January 1990 to July
1993, including service in the Persian Gulf War.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a July 2002 rating decision issued by
the Department of Veterans Affairs (VA) Regional Office (RO)
in Winston-Salem, North Carolina, that denied the veteran's
claim of entitlement to a disability rating in excess of 10
percent for chondromalacia of the left knee.
The veteran was scheduled to appear at a June 23, 2004,
Travel Board hearing but she failed to report; she has not
provided a reason for her absence and has not otherwise
requested another hearing. As such, the Board will proceed
with appellate review of her claim.
FINDINGS OF FACT
1. All relevant available evidence necessary for an
equitable disposition of the veteran's appeal has been
obtained by the RO and the duty to notify has been satisfied.
2. The veteran's chondromalacia of the left knee is
manifested by such symptoms as minimal joint effusion and
patellofemoral mis-alignment.
CONCLUSION OF LAW
The criteria for a disability rating in excess of 10 percent
for chondromalacia of the left knee have not been met. 38
U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7,
4.71a, Diagnostic Code 5099-5010 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Veteran's Claims Assistance Act
The Board observes that the Veterans Claims Assistance Act of
2000 (hereinafter "the VCAA") and its implementing
regulations essentially eliminated the requirement that a
claimant submit evidence of a well-grounded claim. These
regulations provide that VA will assist a claimant in
obtaining evidence necessary to substantiate a claim but is
not required to provide assistance to a claimant if there is
no reasonable possibility that such assistance would aid in
substantiating the claim. 38 U.S.C.A. §§ 5103A, 5107(a)
(West 2002); 38 C.F.R. §§ 3.102, 3.159(c)-(d)) (2003).
The VCAA and its implementing regulations also include new
notification provisions. Specifically, they require VA to
notify the claimant and the claimant's representative, if
any, of any information, and any medical or lay evidence, not
previously provided to the Secretary, that is necessary to
substantiate the claim. As part of the notice, VA is to
specifically inform the claimant and the claimant's
representative, if any, of which portion, if any, of the
evidence is to be provided by the claimant and which part, if
any, VA will attempt to obtain on behalf of the claimant.
38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b) (2003).
In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United
States Court of Appeals for Veterans Claims (hereinafter, the
"Court") held, in part, that a VCAA notice, as required by
38 U.S.C. § 5103(a), must be provided to a claimant before
the initial unfavorable agency of original jurisdiction (AOJ)
decision on a claim for VA benefits.
Here, the RO provided notice to the veteran of the evidence
needed to substantiate the claim of entitlement to a
disability rating in excess of 10 percent for chondromalacia
of the left knee. In a letter dated in March 2002, prior to
the adjudication of the currently appealed claim, the veteran
was informed of VA's obligations to notify and assist
claimants under the VCAA, and she was notified of what
records VA would attempt to obtain on her behalf, what
records the veteran was expected to provide in support of her
claim, and of the need to advise VA of or submit any
additional information or evidence that she wanted
considered. See Pelegrini, supra. The veteran also was
provided with a copy of the appealed rating decision, a
statement of the case, and a supplemental statement of the
case. These documents provided her with notice of the law
and governing regulations, as well as the reasons for the
determinations made regarding her claim and the requirement
to submit medical evidence that established entitlement to a
disability rating in excess of 10 percent for chondromalacia
of the left knee. By way of these documents, the veteran
also was specifically informed of the cumulative evidence
already having been previously provided to VA or obtained by
VA on her behalf. Thus, the Board observes that all of the
aforementioned correspondence informed the veteran of the
evidence she was responsible for submitting and what evidence
VA would obtain in order to substantiate her claim. See
Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v.
Principi, 16 Vet. App. 370 (2002).
The record also reflects that VA has made reasonable efforts
to obtain relevant records adequately identified by the
veteran. Specifically, the information and evidence that
have been associated with the claims file consists of the
veteran's service medical records and post-service medical
records, including VA medical records and examination
reports. Under the circumstances in this case, the veteran
has received the notice and assistance contemplated by law
and adjudication of the claim of entitlement to a disability
rating in excess of 10 percent for chondromalacia of the left
knee poses no risk of prejudice to the veteran. See Smith v.
Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed.
Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001)
(VCAA does not require remand where VA thoroughly discussed
factual determinations leading to conclusion and evidence of
record provides plausible basis for factual conclusions, and
where development of the evidence was as complete as was
necessary for a fair adjudication of the claims, because the
VCAA had not changed the benefit-of-the-doubt doctrine);
Bernard v. Brown, 4 Vet. App. 384 (1993).
Factual Background
As relevant to the currently appealed claim, the evidence
includes the veteran's VA outpatient treatment records from
December 2000 to June 2003 and lay statements.
A review of the veteran's VA outpatient treatment records
from December 2000 to June 2003 reveals that, in November
2001, the veteran complained of left knee pain. Physical
examination of the veteran's extremities revealed a full
range of motion and tenderness to palpation in the left knee.
The assessment included left knee pain.
X-rays of the veteran's left knee taken in January 2002
showed no fracture or effusion. The radiologist's impression
was a negative left knee.
In a statement received at the RO in April 2002, the veteran
stated that she had been given a knee brace "to be used when
I do a lot of walking."
On VA outpatient treatment in April 2002, the veteran's chief
complaint was left knee pain which consisted of "a lot of
popping with movement," tightness and stiffness in the left
knee, and an inability to sit on the left knee. She stated
that her left knee pain had begun in 1991 and had worsened
progressively over time. She also stated that she had been
diagnosed with patellofemoral syndrome of the left knee after
twisting it during basic training. She stated further that
prolonged sitting and walking aggravated her left knee pain.
The veteran rated her left knee pain as 5 out of 10 on a pain
scale and reported that it consisted of a sore ache and
cramping pain that occurred daily and was located around the
medial lateral aspect of the knee joint and radiated around
the left knee cap and down in to the left shin. Physical
examination of the veteran's left knee revealed no crepitus
or effusion, negative anterior and posterior drawer signs,
slight laxity in the medial collateral joint, and the lateral
collateral joint was painful to manipulation with slight
laxity. The veteran also complained of pain when pushing
down on the patella. The assessment was knee pain
(chondromalacia patella).
The veteran complained of left knee pain in the medial to
lateral patellar region and left knee stiffness and popping
with pain on movement on VA outpatient examination in June
2002. She reported that she had injured her knee during a
road march in service in 1990 and had been diagnosed with
patellofemoral syndrome. Physical examination of the
veteran's left knee revealed patellofemoral pain, no
effusion, and medial joint line to lateral joint line
tenderness. X-rays were normal. The diagnoses were
patellofemoral mal-alignment of the left knee and internal
derangement of the left knee.
On VA joints examination in June 2002, the veteran complained
of daily recurrent left knee pain that was 7 out of 10 on a
pain scale and increased popping of the left knee that was
aggravated by weight bearing of any kind. She reported
developing severe pain in her left knee "following a long
march" in March 1999 and that this condition somewhat
interfered with her activities of daily living and her job as
an office worker. Physical examination of the veteran
revealed that she ambulated entirely normally, there was
slight tenderness of the medial aspect of the patella of the
left knee (which the examiner mis-identified as the right
knee), no swelling, deformity, limitation of motion, or pain
on motion, there were negative drawer, McMurray's, and
Lachman's signs, and the veteran was able to squat, toe,
heel, and hop without evidence of pain. There also was no
ankylosis of the knee. The diagnosis was chondromalacia of
the left knee.
On VA magnetic resonance imaging (MRI) scan of the veteran's
left knee in September 2002, the veteran's anterior and
posterior cruciate ligaments were intact, the menisci were
unremarkable without evidence of a tear, and there was
minimal fluid in the knee joint. The medial and lateral
collateral ligament complexes were normal. The
patellofemoral joint cartilage was intact, and the marrow
signals of the distal femur, proximal tibia, and fibula all
were normal. The impression was an unremarkable MRI scan of
the left knee, except for minimal joint effusion. X-rays of
the veteran's left knee in September 2002 also showed no
evidence of fracture or dislocation, unremarkable soft
tissue, and an intact patella. The impression was an
unremarkable x-ray of the left knee.
In a statement on her October 2002 Notice of Disagreement
with the currently appealed rating decision, the veteran
contended that she experienced daily problems with her left
knee which limited her activities of daily living. She also
contended that her left knee pain had worsened.
The veteran complained of left knee pain and patella
discomfort on VA outpatient treatment in April 2003.
Physical examination of the veteran revealed a full range of
motion in the left knee and strength was 5/5. It was noted
that the veteran's recent MRI had been normal (discussed
above). The diagnosis was chondromalacia of the patella.
In a statement on her February 2003 substantive appeal (VA
Form 9), the veteran stated that her left knee had become
more limited and there was a large knot above her left knee.
On VA outpatient treatment in May 2003, the veteran
complained of left knee pain when ambulating, kneeling,
climbing stairs, and hiking. She stated that a left knee
brace helped relieve some of her pain and she wore it while
hiking. Objective examination of the veteran revealed full
active range of motion in both legs, strength was 4-/5 in the
hamstrings bilaterally, knee extension strength was 4+/5 with
static contraction, and there was decreased endurance on
repeated muscle contractions, neurological sensation was
intact, and there was a palpable nodule in the left
quadriceps muscle just above the patella. It was noted that
the veteran's left knee MRI scan and x-rays all had been
unremarkable. The assessment was signs and symptoms
consistent with a diagnosis of chondromalacia of the patella
with decreased hamstring strength, oblique muscle strength,
and muscular endurance, and pain with activities of daily
living.
Analysis
The veteran essentially contends on appeal that she is
entitled to an increased rating for her service-connected
chondromalacia of the left knee because her left knee pain
has worsened.
At the outset, the Board notes that disability evaluations
are determined by the application of a schedule of ratings
which is based on the average impairment of earning capacity.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2003).
Separate diagnostic codes identify the various disabilities.
The governing regulations provide that the higher of two
evaluations will be assigned if the disability more closely
approximates the criteria for that rating. Otherwise, the
lower rating is assigned. 38 C.F.R. § 4.7 (2003).
Additionally, as in this case, a hyphenated Diagnostic Code
may be used in order to more accurately describe the service-
connected disability based on its residuals. 38 C.F.R.
§ 4.27 (2003).
Disability of the musculoskeletal system is primarily the
inability, due to damage or inflammation in parts of the
system, to perform normal working movements of the body with
normal excursion, strength, speed, coordination and
endurance. The functional loss may be due to absence of part
or all of the necessary bones, joints and muscles, or
associated structures, or to deformity, adhesions, defective
innervation, or other pathology, or may be due to pain,
supported by adequate pathology and evidenced by visible
behavior of the claimant undertaking the motion. Weakness is
as important as limitation of motion, and a part which
becomes painful on use must be regarded as seriously
disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38
C.F.R. § 4.40 (2003).
The factors of disability effecting joints are reduction of
normal excursion of movements in different planes, including
less movement than normal, more movement than normal,
weakened movement, excess fatigability, incoordination, pain
on movement, swelling, deformity, or atrophy of disuse. The
knee is considered a major joint. 38 C.F.R. § 4.45 (2003).
A request for an increased rating is to be reviewed in light
of the entire relevant medical history. See generally 38
C.F.R. § 4.1 (2003); Payton v. Derwinski, 1 Vet. App. 282,
287 (1991). Where entitlement to compensation already has
been established and an increase in the disability rating is
at issue, the Court has held that it is the present level of
disability that is of primary concern. See Francisco v.
Brown, 7 Vet. App. 55, 58 (1994); see also Powell v. West, 13
Vet. App. 31, 35 (1999) (all relevant and adequate medical
data of record that falls within the scope of the increased
rating claim should be addressed).
Here, the veteran's service-connected chondromalacia of the
left knee is evaluated as 10 percent disabling by analogy to
38 C.F.R. § 4.71a, Diagnostic Code 5099-5010 (2003).
Diagnostic Code 5010 provides that arthritis due to trauma
that is substantiated by x-ray findings is rated as
degenerative arthritis. See 38 C.F.R. § 4.71a, Diagnostic
Code 5010 (2003).
Degenerative arthritis is evaluated under Diagnostic Code
5003 on the basis of limitation of motion for the specific
joint or joints involved. Limitation of motion must be
objectively confirmed by findings such as swelling, muscle
spasm, or satisfactory evidence of painful motion. When the
limitation of motion of the specific joint or joints involved
is non-compensable under the appropriate diagnostic codes, an
evaluation of 10 percent is applied for each major joint or
group of minor joints affected by limitation of motion. In
the absence of limitation of motion, a 10 percent evaluation
will be assigned where there is X-ray evidence of involvement
of two or more major joints or two or more minor joint
groups. A 20 percent evaluation will be assigned where there
is X-ray evidence of involvement of two or more major joints
or two or more minor joint groups and there are occasional
incapacitating exacerbations. The 10 and 20 percent
evaluations based on X-ray evidence may not be combined with
ratings based on limitation of motion. See 38 C.F.R.
§ 4.71a, Diagnostic Code 5003 (2003).
With any form of arthritis, painful motion is an important
factor. It is the intention of the rating schedule to
recognize actually painful, unstable or mal-aligned joints,
due to healed injury, as entitled to at least the minimum
compensable rating for the joint. 38 C.F.R. § 4.59. A
compensable evaluation under Diagnostic Code 5003 and
38 C.F.R. § 4.59 (for painful motion) is in order where
arthritis is established by x-ray findings and no actual
limitation of motion of the affected joint is demonstrated.
Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Where
compensable limitation of motion is demonstrated in the
joint, the Lichtenfels rule is not applicable.
The veteran's service-connected chondromalacia of the left
knee also could be evaluated under other Diagnostic Codes for
rating knee disabilities. For example, Diagnostic Code 5256
provides disability ratings for knee ankylosis. A minimum
compensable evaluation of 30 percent available for ankylosis
in a favorable angle in full extension or in slight flexion
between zero and 10 degrees. The next higher evaluation of
40 percent is available for ankylosis in flexion between 10
and 20 degrees. An evaluation of 50 percent is available for
ankylosis in flexion between 20 and 45 degrees. Finally, the
maximum evaluation of 60 percent is available under
Diagnostic Code 5256 for ankylosis that is extremely
unfavorable in flexion at an angle of 45 degrees of more.
See 38 C.F.R. § 4.71a, Diagnostic Code 5256 (2003).
Diagnostic Code 5257 provides disability evaluations for
recurrent subluxation or lateral instability of the knee. An
evaluation of 20 percent is available for moderate recurrent
subluxation or lateral instability. The maximum evaluation
of 30 percent is available for severe recurrent subluxation
or lateral instability. See 38 C.F.R. § 4.71a, Diagnostic
Code 5257 (2003).
Diagnostic Codes 5260 and 5261 provide disability ratings for
limitation of flexion and extension of the leg, respectively.
An evaluation of 20 percent is available under Diagnostic
Code 5260 where flexion of the leg is limited to 30 degrees.
The maximum evaluation of 30 percent is available where
flexion of the leg is limited to 15 degrees. See 38 C.F.R.
§ 4.71a, Diagnostic Code 5260 (2003). Where leg extension is
limited to 15 degrees, an evaluation of 20 percent may be
assigned under Diagnostic Code 5261. The next higher
evaluation of 30 percent is available where leg extension is
limited to 20 degrees. An evaluation of 40 percent is
available where leg extension is limited to 30 degrees.
Finally, the maximum evaluation of 50 percent is available
where leg extension is limited to 45 degrees. See 38 C.F.R.
§ 4.71a, Diagnostic Code 5261 (2003).
Diagnostic Code 5262 provides disability ratings for
impairment of the tibia and fibula. Where such impairment is
manifested by mal-union of the tibia and fibula with moderate
knee or ankle disability, an evaluation of 20 percent may be
assigned. An evaluation of 30 percent is available where the
mal-union of the tibia and fibula is accompanied by marked
knee or ankle disability. Finally, the maximum evaluation of
40 percent is available where there is non-union of the tibia
and fibula with loose motion that also requires a brace. See
38 C.F.R. § 4.71a, Diagnostic Code 5262 (2003).
Taking into account the relevant evidence outlined above, the
Board finds that the evidence does not support the veteran's
claim of entitlement to a disability rating in excess of 10
percent for chondromalacia of the left knee. Specifically,
the Board finds that the veteran is not entitled to an
increased rating for her service-connected chondromalacia of
the left knee under any of the Diagnostic Codes discussed
above.
A review of the objective medical evidence of record reveals
complaints of left knee pain on VA outpatient treatment in
November 2001, although physical examination revealed a full
range of motion and only tenderness to palpation in the left
knee. The veteran's January 2002 left knee x-rays were
negative and showed no fracture or effusion. There also was
no left knee effusion on outpatient examination in April
2002, although the veteran again complained of left knee pain
and pain in the patella. The diagnosis was chondromalacia of
the patella. The veteran complained of left knee pain on VA
outpatient treatment in June 2002, at which time a physical
examination revealed patellofemoral pain and no effusion.
X-rays of the left knee were normal. The diagnoses were
patellofemoral mal-alignment and internal derangement of the
left knee. Later that same month, on VA joints examination
in June 2002, physical examination of the veteran revealed
slight tenderness in the patella of the left knee, no
swelling, deformity, limitation of motion, or pain on motion,
and there was no left knee ankylosis. The VA examiner
diagnosed chondromalacia of the left knee. The veteran's MRI
scan of the left knee in September 2002 was unremarkable,
except for minimal joint effusion, and left knee X-rays also
were unremarkable. Although the veteran complained of left
knee and patellar pain on outpatient examination in April
2003, physical examination showed a full range of motion in
the left knee and strength was 5/5. Finally, the veteran
again complained of left knee pain on VA outpatient treatment
in May 2003, although objective examination revealed a full
active range of motion in both legs. The VA examiner's
assessment was that the veteran's signs and symptoms were
consistent with chondromalacia of the patella with decreased
muscular endurance and pain during the activities of daily
living.
With regard to the veteran's current 10 percent evaluation
under Diagnostic Code 5099-5010, the Board observes that
there is no x-ray evidence of the involvement of two or more
major or minor joint groups and occasional incapacitating
exacerbations of left knee pain such that the veteran is
entitled to a higher disability rating for her service-
connected chondromalacia of the left knee. In fact, a review
of the veteran's outpatient treatment reports does not show
any x-ray evidence of arthritis such that she is entitled to
a disability rating in excess of 10 percent for
chondromalacia of the left knee. Even if there were x-ray
evidence of arthritis in the left knee, there also is no
compensable limitation of motion demonstrated in the left
knee, so the Lichtenfels rule is not applicable here. Given
the symptomatology associated with the veteran's service-
connected chondromalacia of the left knee, and given that
there is no x-ray evidence of the involvement of two or more
major or minor joint groups or arthritis, the Board finds
that the veteran is not entitled to a disability rating in
excess of 10 percent for chondromalacia of the left knee
under 38 C.F.R. § 4.71a, Diagnostic Code 5099-5010 (2003).
The RO correctly determined that, under Diagnostic Code 5010,
these findings warrant a 10 percent evaluation. See
38 C.F.R. § 4.71, Diagnostic Code 5099-5010 (2003). The
veteran is not service connected for arthritis of any other
major joint or minor joint groups to warrant a 20 percent
evaluation under Diagnostic Code 5010. Furthermore, none of
the evidence establishes ankylosis of the knee, recurrent
subluxation or lateral instability, limitation of motion on
flexion or extension of the knee, or impairment of the tibia
and fibula to warrant consideration of Diagnostic Codes 5256,
5257, 5260, 5261, or 5262. See 38 C.F.R. §§ 4.71a,
Diagnostic Codes 5256, 5257, 5260, 5261, and 5262 (2003).
However, as the objective medical evidence of record does not
show ankylosis of the knee, recurrent subluxation or lateral
instability, limitation of motion of the leg on flexion or
extension, or any impairment of the tibia and fibula, the
appropriate Diagnostic Code is 5010 as currently rated.
In reaching this decision, the Board has considered the issue
of whether the veteran's service-connected chondromalacia of
the left knee presented an exceptional or unusual disability
picture as to render impractical the application of the
regular schedular standards such that referral to the
appropriate officials for consideration of an extraschedular
rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2003);
Bagwell v. Brown, 9 Vet. App. 337, 338-339 (1996). In this
regard, the Board notes that the evidence does not show that
the veteran's service-connected chondromalacia of the left
knee interferes markedly with employment (i.e., beyond that
contemplated in the assigned rating), warrants frequent
periods of hospitalization, or otherwise renders impractical
the application of the regular schedular standards. The
evidence does not establish that the veteran has required
hospitalization for her chondromalacia of the left knee; nor
is there objective medical evidence showing that this
disability markedly interferes with employment. Therefore,
in the absence of such factors, the Board finds that the
criteria for submission for consideration of an
extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are
not met. Accordingly, 38 C.F.R. § 3.321(b)(1) does not
support assigning a disability rating in excess of 10 percent
to the veteran's service-connected chondromalacia of the left
knee.
Finally, although the Board acknowledges the veteran's
continuing complaints of pain in the left knee, the current
10 percent evaluation adequately compensates her for such
complaints. See DeLuca, supra.
For the reasons and bases discussed above, the Board finds
that the evidence is against the veteran's claim of
entitlement to a disability rating in excess of 10 percent
for chondromalacia of the left knee. 38 U.S.C.A. § 5107
(West 2002); 38 C.F.R. § 3.102 (2003). The appeal is denied.
ORDER
Entitlement to a disability rating in excess of 10 percent
for chondromalacia of the left knee is denied.
____________________________________________
K. PARAKKAL
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA
FORM
JUN
2003
(RS)
4597
Page
1
CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
FORM
JUN
2003
(RS)
4597
Page
2